Prosecutors warn of continued zero bail dangers

Some prosecutors in counties where courts have continued to operate with a zero bail schedule or where early release motions are still being granted due to the pandemic are reporting significant recidivism rates for those who have left custody.

Tulare County District Attorney Tim Ward said in an interview this week that 50% of those released in his county since April have committed new crimes, despite prosecutors having made hundreds of motions arguing they posed a public safety threat. About a third of those released, he said, are facing new felony charges for violent crimes such as kidnapping and assault with a deadly weapon.

“I recognize that there is a technical distinction between incarcerated defendants who were released as a result of COVID orders and those potential inmates released immediately due to zero dollar bail, but there is no distinction in the impact on our community,” Ward said.

In Yolo County, District Attorney Jeffrey W. Reisig said in a recent news release that 349 people have been arrested and released a total of 411 times on charges ranging from attempted murder to robbery since the California Judicial Council issued a statewide zero bail schedule in April.

In June, the emergency bail requirement was rescinded. The Judicial Council said just 8% of the roughly 20,000 defendants released on zero bail had committed new offenses by then. It’s unclear whether that percentage has increased as a patchwork of counties have reverted back to their standard bail schedules while others have maintained versions of zero bail.

Defense attorneys and proponents of eliminating bail have said prosecutors are creating a distraction from the stories of those who have been successfully released from custody by denouncing zero bail as a public safety threat.

“These are exceptions and they obscure the larger story of the human costs of jailing people because they can’t pay bail,” Robin Steinberg, a former public defender and founder of the Bail Project, said at a town hall earlier this year.

However, some say there were flaws that repeat offenders exposed.

“One of the flaws was including 10851s in zero bail,” said Eric Schweitzer, president of California Attorneys for Criminal Justice, referring to the emergency bail schedule’s inclusion of vehicle theft as a qualifying offense to be freed without bail.

From Los Angeles County to Yolo County, prosecutors have routinely highlighted accounts involving people released pretrial who allegedly went on car-jacking sprees once released.

In Los Angeles County, District Attorney Jackie Lacey said in July that one defendant had been charged in four separate felony cases for allegedly stealing more than a dozen cars within a three-month period after being released on zero bail.

Authorities in Glendora in eastern Los Angeles County said earlier this year they had arrested a man three times in one day for allegedly stealing cars and other property after being released on zero bail.

And Reisig in Yolo County said earlier this month that a Sacramento woman was arrested three times in four days for similar crimes. Reisig said the woman is being charged with vehicle theft, driving under the influence of drugs, hit and run and other crimes including looting and commercial burglary.

Even prior to the George Floyd protests and riots that took place in cities across the country this summer, Stanislaus County District Attorney Birgit Fladager took a firm stance against some zero bail qualifying crimes. She issued a policy directing her prosecutors to up-charge burglary and theft as looting so that defendants charged with qualifying theft crimes could be detained pretrial.

These decisions drew rebukes from civil rights groups.

The American Civil Liberties Union of Northern California condemned Fladager and Ward for their opposition to the zero bail schedule in a scathing statement after Fladager issued the anti-looting policy and Ward announced that his prosecutors were objecting to pretrial and early releases.

“Both of these elected district attorneys are deliberately ignoring the advice of medical experts, choosing to flout mandatory statewide directives intended to save lives by reducing the number of people held in pretrial detention,” the ACLU said.

But Ward said in an interview that it’s not just prosecutors who opposed these pretrial releases.

“The voters of the state of California, and certainly Tulare County, spoke very loudly that they trust a cash bail system far more than they trust an algorithm system,” Ward said, referring to a measure on the November ballot that would have eliminated cash bail across the state and replaced it with a risk assessment system informed by computer-generated algorithms.

Still, Tulare County Superior Court, like many others, chose to keep the temporary zero bail schedule in place. Presiding Judge Brett R. Alldrege said in a court order that the schedule would remain in effect until 90 days after Gov. Gavin Newsom lifts the state of emergency or until it’s repealed or amended by the court.

Ward sent a letter last week asking him to rescind it, citing what he called a “staggering” recidivism rate.

“Recent tragic events, at the hands of early released offenders, has informed all of us that there is ample reason to eliminate the zero cash bail process,” Ward wrote. “One cannot remain committed to a theoretical social experiment without due regard for the people who shoulder the burden of crime.”

But Ward said this week that the request was denied and he was informed the emergency provisions will continue.

Although he believes there were flaws, Schweitzer, who opposed the ballot measure to replace cash bail with a risk assessment system, said he’s glad the Judicial Council mandated zero bail and that some local courts continue to use it.

“Given the deadliness of the pandemic, it was absolutely necessary, and it saved lives,” he said.